June 21, 2007

Banning "rape" in a rape trial

Sean Albright called my attention to a Slate article about a recent gag order given by a district court judge in Lincoln, Nebraska. As the writer puts it, it's a language war. The judge granted a defense motion to ban use of the words, "rape," "sexual assault," "victim," "assailant," and "sexual assault kit" from an alleged rape trial. The prosecution countered with a motion requesting that the words, "sex" and "intercourse" also be banned, but the judge denied this motion, possibly out of fear that the lawyers and witnesses might run out of words to describe what happened. My friend Bruce Lyons, a Ft. Lauderdale criminal defense lawyer, doesn't see a problem here. He pointed out what any good defense lawyer might be expected to say:

A prosecutor who has the facts does not have to rely on words like 'victim' or 'rape.' I don't see what the hullabaloo's about. It seems like someone is looking for a scapegoat.

Lyons also believes a prosecutor should be able to elicit testimony from witnesses, including the persons on whom the act was allegedly committed, without using words like "rape."

Here we have a problem of the conflict between legal language, required at trials, and the language of outsiders to law, especially victims (oops, I used that word) and witnesses, even expert witnesses. Outsiders try to describe what happened, using their own words. They are often oblivious to the requirements of legal language and concepts. "Sex" and "intercourse," for example, are considered legally neutral words. "Rape" and "victim" presuppose conclusions that are to be drawn by the judge and jury, not by the witnesses and lawyers. Saying "the man assaulted me" goes beyond a description of what happened and points to a legal conclusion.

But this distinction is not easily evident to a woman in a trial like this as she tries to testify about what she says happened to her. The judge ruled that she will have to use legal terms, not her own. But it is likely to be difficult for her to say, "then we had intercourse" when what she wants to say is "then he raped me." Here we see a conflict with the required legal register. Physicians should not expect their patients to speak medicalese, but law seems to require that witnesses learn to talk in the legal register. The banning of certain words at trial has its good and bad points but we have to remember that it's part of the court's responsibility to keep trials fair.

Although I can understand both sides of the banned language issue, sometimes it can get very complicated. For example, a few years ago I was about to testify at a murder trial in Virginia. I analyzed the tape recordings of some very hard-to-hear tapes and prepared a transcript so that the jury could follow my testimony. As it turns out, the prosecution did not even try to transcribe these muddy sounding tapes but relied instead on what the undercover officer had testified about what was on them. The officer was way off in his interpretation and I was primed to show this. Virginia has  some very odd procedures when it comes to expert witnesses. I was isolated in a room next to the courtroom with a guard watching my every move. He even accompanied me to the men's room. After about five hours under guard, I was finally called to testify. As I described my transcript to the jury I was surprised that the judge became furious. It seems that while I was waiting under guard in the witness room, the judge had ruled that the word, "transcript," could not be used in the trial. My problem was that nobody had bothered to tell me this. It was a discombobulating experience and on the spot I had to reconstruct how I could bring out the points I wanted to make without referring to the transcript that I was not permitted to use with the jury. I felt a bit like the woman in the alleged rape trial, but at least she knows about the gag order. I didn't.

Posted by Roger Shuy at June 21, 2007 12:11 PM